SOUTH AFRICA: FURTHER REGULATION OF THE EMPLOYMENT OF FOREIGN NATIONALS ON THE CARDS

By Chloë Loubser,Rosalind Davey Wednesday, March 09, 2022
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On Monday, 28 February 2022, the Minister of Employment and Labour (Minister) published the Draft National Labour Migration Policy (Draft Policy) and Employment Services Amendment Bill (Bill) for public comment.

Employers who rely on foreign nationals as part of their workforce are encouraged to familiarise themselves with the proposed new laws, which may make it more difficult to hire foreigners in future. Any comments on the Draft Policy or Bill should be sent to NLMP@labour.gov.za by 29 May 2022.

The Bill and the Draft Policy were developed, inter alia, to provide the legal foundation and framework within which to regulate the employment of foreigners while at the same time providing for their protection. One of the key takeaways from the Bill and the Draft Policy is that the Department of Employment and Labour will take a more active role in matters relating to the employment of foreigners as well as the emigration of South Africans seeking employment abroad.

The Draft Policy aims to prioritise, amongst other things:

  • attracting and retaining skills to/in South Africa (the brain gain);
  • imposing quotas to limit the number of foreigners employed in South Africa to protect employment opportunities for South Africans;
  • prioritising certain sectors that need urgent critical skills; 
  • improving migrant labour conditions of employment; and 
  • improving social protection of migrant labour.

The Bill is intended to amend the Employment Services Act, 2014 (Act) to, among others, more strictly regulate the employment of foreign nationals in South Africa by inserting a new Chapter 3A which will impose the following duties on an employer employing foreign nationals:

  • to ensure that the foreign nationals are entitled to work in South Africa and perform the work for which they are employed;
  • before recruiting a foreign national, to take steps to satisfy themselves that there is no-one in South Africa, other than foreign nationals, with the requisite skills to fill the vacancy;
  • to prepare a skills transfer plan in respect of any position in which a foreign national is employed:
  • to employ foreign nationals on terms and conditions that are not inferior to the terms and conditions that would be provided to a South African citizen, permanent resident or refugee; and
  • to retain copies of all documents that reflect that the foreign national is lawfully entitled to be employed in South Africa.

The Bill also empowers the Minister, by way of notice, to set the maximum quotas for the employment of foreign nationals in any sector. The notice, to be published in the Government Gazette, must specify the period within which existing, and newly established, employers must comply with the quotas. Small employers are, however, exempt from the quotas.

The Bill provides for exceptions to the maximum quotas and allows an employer to employ more foreign nationals if:

  • a foreign national is employed to fill a position in respect of which critical skills are required (as determined in accordance with the provisions of the Immigration Act, 2002); or
  • the employer has applied for an exemption from the applicable quota in the prescribed form, and the exemption has been granted by the Minister.

Any person who employs or engages an employee or worker in contravention of the Act may be liable for a fine. In addition to this, an employee or worker is entitled to enforce any claim s/he may have against the employer or any person who is otherwise liable in terms of any statute, collective agreement or the agreement entered into between the parties. The claim may also be enforced on behalf of an employee or worker by a labour inspector or bargaining council agent.

The Bill further provides for the Minister to make regulations concerning the employment of foreign nationals that may include:

  • the measures that employers must take to satisfy themselves that there are no other persons in South Africa with the requisite skills to fill a vacancy, before recruiting a foreign national;
  • the requirement for employers to make use of public or private employment services/agencies to assist with the recruitment of suitable employees or workers who are South African citizens, permanent residents or refugees;
  • requirements for the preparation of a skills transfer plan for any position in which a foreign national is employed;
  • the criteria and procedure for applying for an exemption from any of the provisions of Chapter 3A; and
  • the records that an employer is required to keep.

The Bill also seeks to expand the scope of the Act to cover both employees and ‘workers’ and introduces the concept of a ‘digital labour platform’ which is ‘an electronic entity that enables the provision of work or services by a person to any other person in the Republic’.

In terms of the Bill, for purposes of the Act, a digital labour platform is an employer and any person who provides work or services in the Republic to another person by means of a digital labour platform is a worker if:

  • the payment for, or terms and conditions of, such work or services are determined by the digital labour platform; and
  • the digital labour platform remunerates the worker.  

The proposed amendments to the Act raise some complex issues and are already receiving strong opposition from certain groups. Please watch out for our further newsflashes in which we will unpack some of these issues in more detail.